STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 11-2268PL

)

MARICELA PONCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes, before

Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted on July 13, 2011, by video teleconference at sites in Miami and Tallahassee and by telephone conference in Immokalee, Florida, and on

July 26, 2011, by telephone conference at sites in Miami, Tallahassee, and Immokalee, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Elissa R. Saavedra, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Maricela Ponce, pro se

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed a battery on another person and thus failed to maintain good moral character, as alleged in the Administrative Complaint, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 19, 2010, Petitioner, Criminal Justice Standards and Training Commission (“Petitioner”) alleged that on or about July 24, 2009, Respondent, Maricela Ponce (“Respondent”) unlawfully committed a battery on Miguel Rua in violation of section 784.03, Florida Statutes, and thus failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b). Respondent disputed the allegations in the Administrative Complaint and timely requested an administrative hearing. The matter was referred to the Division of Administrative Hearings (“Division”) on May 3, 2011, for assignment of an Administrative Law Judge and the conduct of a hearing pursuant to section 120.57(1), Florida Statutes.

On May 10, 2011, Petitioner filed a Motion to Deem Request for Admissions Admitted and to Relinquish Jurisdiction, based on Respondent’s alleged failure to timely respond to Petitioner’s First Set of Request for Admissions (“RFAs”). The Motion was

denied on June 6, 2011, on the ground that it appeared from the record that Respondent had not been served with the RFAs.

The final hearing was set for July 13, 2011. Pursuant to Petitioner’s motion, on July 7, 2011, the Administrative Law Judge issued an Order Allowing Testimony by Telephone.

Pursuant to notice, the final hearing was commenced on July 13, 2011. Petitioner’s witness Miguel Rua failed to appear on the alleged basis that he had been injured at work the day before the hearing. The undersigned conducted the final hearing, taking the testimony of all witnesses other than

Mr. Rua. Collier County Sheriff’s Deputy Jesus Alonso testified on behalf of Petitioner, and Petitioner’s Exhibit 2 was admitted into evidence without objection. Respondent testified on her own behalf1 and did not offer any exhibits into evidence.

Following the close of testimony by these witnesses, the undersigned continued the final hearing until July 26, 2011, and issued an Order Holding Evidentiary Record of Final Hearing Open, for the sole purpose of taking Mr. Rua’s testimony,2 and an Order Continuing Final Hearing and Scheduling Continued Final Hearing by Telephone Conference.

On July 26, 2011, the final hearing was reconvened by telephone. Petitioner presented the testimony of Miguel Rua and offered Petitioner’s Exhibit 1, which was received into evidence without objection.

The first volume of the two-volume Transcript of the final hearing was filed with the Division on August 12, 2011. The second volume was filed on August 18, 2011. By Notice of Filing Transcript issued August 18, 2011, the parties were given until August 29, 2011, to file their Proposed Recommended Orders.

Petitioner timely filed a Proposed Recommended Order, which was considered in preparing this Recommended Order. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with certifying persons as correctional officers in Florida. § 943.12, Fla. Stat. (2009).3 Pursuant to section 943.1395, Petitioner is authorized to take disciplinary action against persons certified as correctional officers.

2. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer. She became certified in 2007, and currently is certified. She was not employed as a correctional officer at the time of the alleged battery that is the subject of this proceeding.4

3. On July 24, 2009, Corporal Jesus Alonso of the Collier County Sheriff’s Office, a uniformed patrol deputy in the Immokalee substation, was dispatched to a residence at 857 Cucumber Lane, Immokalee, to investigate a matter for which the

   
   

   Sheriff’s Office had received a call. At that time, Respondent’s mother lived at that address.

4. There, Corporal Alonso made contact with Mr. Miguel Rua, who was waiting outside of the house. Respondent was inside the house when Corporal Alonso arrived.

5. Mr. Rua is Respondent’s ex-boyfriend and the father of their two daughters. Their daughters were ages four and six years at the time of the alleged battery. Respondent and

   Mr. Rua previously had resided together as a family.

   
   

6. Corporal Alonso testified that Mr. Rua told him he had gone to the residence with his sister-in-law,5 and that Respondent had become upset with him and hit him on the left side of his head with a phone.

7. Corporal Alonso observed a reddish discoloration in the temple area on the left side of Mr. Rua’s head. He took three photographs of Mr. Rua, consisting of a full body photograph, a profile of the left side of Mr. Rua’s head, and a close up of Mr. Rua’s left temple showing an area of reddish discoloration.

8. Corporal Alonso took Mr. Rua’s sworn statement regarding the alleged incident.

9. Corporal Alonso arrested Respondent on the charge of battery. He concluded that Respondent had committed a battery on Mr. Rua, based on Mr. Rua’s sworn statement, his observation of the discolored area on Mr. Rua’s left temple, and his

   
   

   determination that Respondent was trying to avoid being detained because she was inside the house when he arrived.

10. Corporal Alonso did not take Respondent’s sworn statement before arresting her.

11. Corporal Alonso was not present at 857 Cucumber Lane at the time the alleged battery took place. He did not observe the alleged battery, and there is no evidence that he had personal knowledge of any events comprising or surrounding the alleged battery. He conceded that that he could not determine how the mark on Mr. Rua’s head was made.6

12. Mr. Rua also testified regarding the events of

    
    

    July 24, 2009. He arrived at 857 Cucumber Lane, Immokalee, with his sister-in-law, in his brother’s car. He saw his daughters outside of the house, so got out of the car to talk to them. He testified that Respondent came out of the house yelling at him, and they argued.

13. Mr. Rua testified that he got back into the car, in the front passenger’s side, and that Respondent came up to the car window and tried to punch him through the window. He testified that she hit him on the left side of his forehead with a white wireless house phone, then went back into the house. He testified that the blow was painful and became swollen and red. He called the Collier County Sheriff’s Office.

14. Respondent also testified regarding the events of

    
    

    July 24, 2009. According to Respondent, Mr. Rua arrived unannounced at 857 Cucumber Lane, Immokalee. An argument ensued between them, and profanity was used in front of their daughters. Respondent testified that she told Mr. Rua to leave, but he refused and said he was going to “call the cops.” Respondent testified that was fine with her, because she believed they would make him leave. She took her daughters back into the house and stayed inside with them, while Mr. Rua stayed outside.

15. When the Collier County Sheriff’s Office law enforcement officer arrived, he went into the house and arrested her for the battery of Mr. Rua. Respondent testified that she tried to tell her side of the story but the officer did not take her sworn statement.

    Determination of Ultimate Facts

    
    

16. Upon considering the credibility of each witness in conjunction with the photographs of Mr. Rua that were taken by Corporal Alonso on July 24, 2009, the undersigned determines that Petitioner has not sustained its burden to prove, by clear and convincing evidence, that Respondent committed a battery on Mr. Rua and thus failed to maintain good moral character.

17. Respondent’s testimony regarding the events of July 24, 2009, was credible and persuasive.

    
    

18. By contrast, Mr. Rua’s testimony was not convincing, and thus insufficiently persuasive, because it is inconsistent with the photographic and other evidence in the record. Specifically, the photographs taken by Corporal Alonso show a discolored mark on Mr. Rua’s left temple, and Mr. Rua and Corporal Alonso both testified that the mark was on Mr. Rua’s left temple. However, if, as Mr. Rua testified, he was seated in the front passenger’s side of his brother’s car when Respondent punched him through the window, then the right side of his head——not the left side——would have been facing the car window and thus been exposed to the blows. In any event, there is no evidence in the record to explain the apparent discrepancy between Mr. Rua’s testimony regarding his and Respondent’s relative locations during the alleged battery, and the location of the mark on the left side of his head.

19. Corporal Alonso’s testimony does not buttress

    
    

    Mr. Rua’s testimony. He was not present at the time of, and has no personal knowledge of, the alleged battery. He conceded that he did not know how Mr. Rua sustained the mark on his left temple. Corporal Alonso’s testimony authenticated the photographs he took of Mr. Rua; however, because he lacked personal knowledge of Mr. Rua’s injury, his testimony is not persuasive with respect to whether Respondent caused that injury by committing a battery on Mr. Rua.

    
    

20. Corporal Alonso’s testimony regarding his belief that Respondent went back into the house to avoid being detained is merely conjectural and not persuasive in determining whether Respondent committed a battery on Mr. Rua. Respondent’s testimony to the effect that she went back into the house following the argument to avoid further conflict with Mr. Rua provides a reasonable and credible explanation for why she was not outside the house when Corporal Alonso arrived, and hence has been accepted as truthful.

21. Based on the greater weight of the evidence in the record, the undersigned determines, as a matter of ultimate fact, that Respondent did not commit a battery on Mr. Rua.

22. Accordingly, the undersigned determines, as a matter of ultimate fact, that Respondent did not fail to maintain good moral character in violation of sections 943.1395(7) and 943.13(7).

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.

24. This is a penal disciplinary proceeding against Respondent's correctional officer certification. Accordingly, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking &

    
    

    Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So.

    2d 292, 294 (Fla. 1987).

    
    

25. Clear and convincing evidence requires that:

    
    

    ... the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

26. The Administrative Complaint alleges that Respondent failed to maintain good moral character as required by section 943.13, and thereby violated section 943.1395(7), which provides in pertinent part:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

       
       

    3. Placement on a probationary status for a period not to exceed 2 years . . . .

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

27. Florida Administrative Code Rule 11B-27.0011(4), which defines “good moral character,” provides in pertinent part:

    (4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. Sections . . . 784.03 [battery]. . . , F.S.

    * * *

    (Emphasis added).

    
    

28. Section 784.03(1)(a)1, Florida Statutes, provides that the offense of battery occurs when a person ". . . actually and intentionally touches or strikes another person against the will of the other; or . . . intentionally causes bodily harm to another person."

29. Petitioner alleges that Respondent failed to maintain good moral character, pursuant to rule 11B-27.0011(4)(b), by committing a battery on Mr. Rua.

    
    

30. For the reasons discussed herein, Petitioner has not met its burden to establish, by clear and convincing evidence in the record of this proceeding, that Respondent committed a battery on Mr. Rua.

31. Accordingly, Petitioner has not met its burden to establish, by clear and convincing evidence, that Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 6th day of September, 2011, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2011.

ENDNOTES

1 Respondent sought to have two other witnesses testify on her behalf at the final hearing. They were not permitted to testify because they were not disclosed to Petitioner until after the close of business on the evening before the final hearing commenced on July 13, 2011. The undersigned determined that allowing their testimony may have unfairly surprised and unduly prejudiced Petitioner.

2 The Order Holding Evidentiary Record of Final Hearing Open was conditioned on the Petitioner providing credible, objectively verifiable evidence with the Division on or before July 25, 2011, substantiating Mr. Rua’s alleged injury. Such evidence was timely provided, so the undersigned permitted Mr. Rua to testify.

3 Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.

4 Respondent voluntarily left an employment position as a correctional officer on or about June 23, 2008. Her law enforcement officer certification has not been revoked.

5 Mr. Rua’s brother is married to Respondent’s sister.

6 Corporal Alonso testified that Mr. Rua made a sworn statement and was advised he could be arrested for filing a false report if he lied in making the sworn statement.

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Maricela Ponce

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-002268PL

Orders for Case No: 11-002268PL